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2010 DIGILAW 580 (CAL)

Tapash Paul v. STATE OF WEST BENGAL

2010-05-21

ASHIM KUMAR ROY

body2010
JUDGMENT 1. THE subject matter of challenge in this criminal revision is an order of dismissal of a complaint before issuance of summons on the ground of nonappearance of the complainant and his lawyer. THE order impugned is quoted below; "Order dated 25.8.09. Complainant is absent on repeated calls. None move. It appears from the record that complainant is absent from 2.3.09. So I think complainant is not willing to proceed the case. Hence, it is ordered, that the instant case be and the same is dismissed for non prosecution." 2. HEARD the learned advocate appearing on behalf of the petitioner as well as the learned advocate appearing on behalf of the State. Perused the impugned order as well as the other materials on record. The case in question relates to an offence punishable under Section 138 of the Negotiable Instruments Act. After filing of the complaint before the Learned Chief Judicial Magistrate, Barasat, the Court took cognizance and transferred the case to the Court of the Learned Judicial Magistrate, 1st Court, Barasat. After receipt of records the Learned Judicial Magistrate, 1st Court, Barasat, on 18th of August, 2008 fixed September 2, 2008 for recording of initial deposition of the complainant. On September 2, 2008 and on November 14, 2008 the complainant was absent by petition and hearing was adjourned till March 2, 2009. On March 2, 2009 the complainant was not present when the Learned Magistrate fixed July 8, 2009 as the next date directing the complainant to show cause as to why the complaint shall not be dismissed. On July 8, 2009 the complainant was present in Court filed his affidavit-in-chief as well as his reply to the show cause. But on that day due to the Court reason the hearing was adjourned till August 25, 2009. On August 25, 2009 the complainant was absent and the Learned Magistrate dismissed the complaint. 3. NOW, having gone through the materials on record, I find in the case at hand, the Court has taken cognizance of the offence and the evidence by way of affidavit of the complainant has been filed in the Court, but the complaint was dismissed on the sole ground neither the complainant nor his lawyer was present, without recording any reason on merit. Under the scheme of Code of Criminal Procedure, once cognizance is taken under Section 190 of the Code of Criminal Procedure, a Court is empowered to dismiss a complaint under Section 203 of the Code of Criminal Procedure, if Court after considering the statement on oath of the complainant and his witnesses and the result of investigation, if any, under Section 202 of the Code of Criminal Procedure, is of the opinion there is no sufficient ground for proceeding and such order of dismissal must be supported by recording of reasons. Therefore, no complaint after taking of cognizance and tendering of evidence of the complainant on affidavit, can be dismissed by any Court without forming an opinion that there is no sufficient ground for proceeding and supporting such opinion by recording of reasons, thus the order impugned cannot be sustained and accordingly set aside. The Learned Magistrate is directed to proceed with the case in question from the stage when it was dismissed in accordance with law. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.